Can I get disabled widow’s benefits?

Question: My husband of thirty five years died at age 65. He was collecting Social Security. I’m 58, so I’m not eligible for retirement yet, but I can no longer work due to a bad hip and back problems. Someone told me I could get disabled widow’s benefits?

Answer: As long as you became disabled within seven years of your husband’s death and you fit Social Security’s definition of disabled, you should be able to get disabled widow’s benefits (DWB). Disabled widowers receive 71.5% of their spouses’ primary insurance amount, but you may receive less since it sounds like your husband was collecting early retirement benefits.

To get benefits before age 60, you have to apply for disabled widow’s benefits and prove to Social Security that you have a disability that prevents you from working any full-time job, for at least a year. You may want to read Nolo’s articles on disability for back problems and disability for hip problems to see if you would qualify as disabled.

Once you turn 60, your benefits would convert to “aged widow’s benefits,” which are like widow’s retirement benefits. These benefits are also sometimes referred to as surviving spouse benefits or spousal survivor benefits.

Can SSI force someone to apply for early retirement benefits?

Question: My brother just turned 62 and has been on SSI disability for 19 years. He receives $650 a month. Social Security says he has to apply for “early retirement” benefits now and cannot wait until he reaches “full retirement” at age 66. His early retirement benefits will only be $500 a month. Is this accurate? They did not cite any statute.

Answer: It sounds like your brother didn’t qualify for Social Security disability benefits but does qualify for retirement benefits. This can happen when someone didn’t work recently enough in relation to when they filed for disability, but they did work enough years in the past to qualify for a small retirement benefit. In this case, the applicant is stuck with collecting only SSI disability until they turn 62. After they turn 62, they becomes eligible for Social Security retirement.

I’m afraid Social Security is right. One requirement of continuing to receive SSI benefits is that the SSI recipient apply for any other cash benefits that are available, and this includes Social Security retirement benefits. So your brother will have to start collecting his early retirement benefit, even though his retirement benefit would be larger if he were able to wait until full retirement age.

The good news is that he’ll be able to receive both Social Security retirement and SSI at the same time, so his overall monthly benefit won’t decrease. He should receive $500 as the retirement benefit and $150 as the SSI benefit.

A note for those who are receiving both SSI and Social Security disability insurance (SSDI): When these “dual beneficiaries” turn 62, they will continue to receive SSDI until full retirement age, at which time the SSDI will convert to Social Security retirement. (The SSDI and retirement benefit should be the same amount.) In other words, SSDI recipients aren’t forced to apply for early retirement benefits, so their lifetime retirement benefit is not decreased.

If I move to a state that doesn’t recognize same-sex marriage, will I lose my Social Security benefits?

Question: I heard Social Security finally changed the rules regarding benefits for same-sex couples. If I was married in a recognition state in the Northeast and then I retire to Florida, a non-recognition state, will my Social Security spousal benefits be cut off?

Answer: It depends. If you were already receiving benefits before you moved, you should be okay. The Justice Department has clarified this week what happens if a married couple moves to a state that doesn’t recognize gay marriage. From now on, when a claimant applies for spousal benefits, the Social Security Administration will evaluate his or her eligibility based on the state in which she lives during the application process, and will not later reassess eligibility if the person moves. Here’s some background on how Social Security decides eligibility.

Whether a spouse is eligible for Social Security benefits on her spouse’s earnings record depends on whether the state in which the couple lives recognizes the couple’s marriage as valid. Despite a 2013 Supreme Court ruling that overturned part of the Defense of Marriage Act (DOMA), a federal Social Security statute still says spouses are considered married when the state in which they live considers them married.

The states that now recognize same-sex spouses as legally married and eligible for Social Security dependent and survivors benefits are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and D.C.

So, for example, if you and your spouse are legally married in New York and you apply for Social Security benefits while living there, and then you move to Florida, a state that doesn’t recognize same-sex marriage, you will continue to receive benefits because you lived in New York when you applied for benefits. This is a bit quirky, because it also means that, if you marry in New York, live there for a while, then move to Florida, and then apply for Social Security benefits, you will be ineligible, because at the time of application you lived in a non-recognition state. Confusing, but that’s the way current law stands.

For more information on the benefits available, see Nolo’s articles on Social Security dependents benefits and Social Security survivors benefits.

How come Social Security didn’t find me disabled under a grid rule?

Question: I recently applied for SSDI and was denied. I sent in over 700 pages of medical records. Social Security did agree that I could no longer return to my past laborious jobs of shipper, receiver, stockroom, etc., but I think they failed to use the grid rules. I am 50 years old. I quit school in 11th grade and later got my GED. I have no skill sets and no formal training for sedentary work, which they said is all I can do now. I told them in records and adult function form that I can only lift 5 pounds and have trouble sitting too long; they ignored that. When I searched the Social Security site and read their grid rules, I found out I should have been found disabled!

Answer:

You may be right about the grid rule, but my guess is that Social Security considered the grid rules and decided that you did not fall into the disabled category. Look at our article on Social Security’s disability grid rules and find the chart for RFCs for sedentary work for 50 year olds. Since you got your GED, you fall under ” High school graduate or more, but no training for direct entry into skilled work.” You will see that, if Social Security agreed you have no skills or no transferable skills, you will be found disabled. BUT, if Social Security found you have skills that could be transferred to another job, you will not be found disabled.

Social Security defines shipping or receiving clerk as a skilled job, because it usually involves clerical work, such as “counting, weighing, or measuring items of incoming and outgoing shipments.” So Social Security probably believes that you have skills that you could use at another type of clerical job where you don’t need to lift anything heavier than a few pounds.

To see if this is the case, you should read the personalized explanation rationale you were sent with your denial notice. It may address the grid rules and why you didn’t fit under a rule(they will probably be called medical-vocational rules).

If the personalized explanation rationale doesn’t cover the medical-vocational rules, you should request your disability file from Social Security, which should include Form SSA-4268: Explanation of Determination, which includes the “technical rationale” that the claims examiner used in making your disability determination. The technical rationale contains more information than the personalized explanation rationale. It should address why Social Security didn’t feel that particular grid rules didn’t apply. Then it will be up to you to argue at your appeal hearing why a certain rule does in fact apply.

For instance, if your actual job didn’t involve any clerical work (in other words, you performed the job of shipping/receiving clerk differently than it is generally performed), then you didn’t gain any job skills, and they can’t be considered transferable. In short, you need to prove that your past work was unskilled to fit into this grid rule (or that the skills you did gain are not transferable). Chances are, you would need the help of a disability lawyer to prove this at your appeal hearing, but you can read our article on proving you don’t have transferable job skills to Social Security to see if you think you could handle it yourself.

Your personalized explanation rationale or technical rationale may also include examples of the sedentary jobs that Social Security says you can do. If so, you can try to prove that your medical limitations prevent you from doing these jobs. For instance, at your hearing you should bring up the fact that your records say you can’t sit for too long. (Try to get an updated medical opinion to support this.) In this case, if your records prove that you can’t even do sedentary work, you must be found disabled. For more information on this argument, see our article on how to get disability benefits if you can’t do sedentary work.

Do I need a lawyer to reapply for disability to get benefits going back to the date of my first application?

Question: I have been battling chronic migraines, chronic daily headaches, depression & anxiety for over a decade. About 18 months ago I finally applied for disability benefits. I was denied. Due to my conditions and frustration, I failed to appeal my denial.
I know it’s too late to appeal, so can I reapply or do I need to get a lawyer? If I can reapply, can I still request benefits from almost two years ago, when I initially applied?

Yes, you can reapply for disability benefits from Social Security by filing a new claim. You can also request that your original claim be reopened when you file the new claim. If you’re successful, Social Security will pay benefits back to the date of your original application, or even up to a year before your original application date if you can prove your disability started that long ago.

You didn’t say when you received the denial from Social Security, but if it was less than 12 months ago, you should have an easy time reopening your claim. You do have to claim that the same medical conditions (or related ones) are disabling and that your disability started before the date of your first claim. In your case, it sounds like that won’t be a problem. But make sure you have medical records that show you suffered from these conditions several years ago and that you’ve also been seeing a psychiatrist or neurologist recently.

If you received the denial more than a year ago, you’ll have a harder time reopening the claim. You’ll have to show that you have “new and material” evidence about the claim (meaning the evidence wasn’t considered in the prior claim and it would have meant an approval of benefits), or that that the prior decision reflects an obvious error. This isn’t an easy standard to meet, and if you request a claim be reopened and the request is denied, you can’t appeal the decision.

So if you were denied over 12 months ago, I would ask a disability lawyer to help you reopen your original application. A disability lawyer will know how to request the prior claim be reopened and how to argue why your evidence is new and material or why there was a clear error in the initial decision. An attorney can also make sure your new claim follows the reopening rules regarding dates and relevance. Of course, if the lawyer doesn’t think your case is likely to win or get reopened, that will save you the time and headache it will take to file a new claim and wait for an answer. In other words, it’s always a good idea to at least do a free consultation with w lawyer. To set up a consultation, you can fill out Nolo’s case evaluation form and a disability lawyer from your area will follow up with you.

If my doctor says I can’t work, doesn’t that imply I have functional restrictions?

Question: I have degenerative disc disease and a herniated disc, have had spinal fusion surgery, and I still am not able to return to my job. I was hoping that the insurance company would approve me for long-term disability benefits (following the expiration of my short-term benefits). However, the insurance company said I don’t have any continuing restrictions even though my doctor says that I should not return to work yet. I called the insurance company and they said the medical records submitted by my doctor’s office don’t show what restrictions I have. Shouldn’t the off-work order be enough?! 

Answer: Generally a long-term disability insurance company wants objective, comprehensive medical evidence that there are specific functional restrictions that prevent you from returning to work. A doctor’s note that you can’t return to work until your next evaluation, or that you are fully disabled and should not return to work, is not going to cut it. Insurance companies want to know the following:

  • how long you can stand, walk, or sit
  • how much weight you can lift, push, or pull
  • whether you can reach overhead, bend, or stoop
  • whether you can handle small object with your fingers or type
  • how frequently you need to take breaks, and
  • how much time you need to take off work for sick days or hospitalizations.

If your doctor can provide this information and it shows your functional limitations (restrictions) are great enough to keep you from working, you should be able to get approved for long-term disability (LTD). If you apply for Social Security disability insurance (SSDI), the Social Security Administration will want this information as well. The best way to gather this information is to have your doctor fill out a detailed functional capacity report about what you can and cannot do.

Don’t rely on the insurance company to send forms to your doctor to fill out; insurance paperwork isn’t likely to solicit answers to questions in your favor, and it’s not likely to be as comprehensive as a functional capacity form. Plus, you won’t know whether your doctor filled out the forms or instead just sent a short note with an unsupported opinion on your disability.

Nolo has a residual functional capacity form you can give to your doctor to document your restrictions for both your LTD claim and your SSDI claim. The form also asks for clinical findings and test results that back up the doctor’s opinion on your restrictions. Tying this evidence to the doctor’s opinion is key to getting an approval.

Explain to your doctor that the insurance company needs details, hand him or her the form to fill out, and ask the doctor to send you a copy of the filled out form. That will give you the evidence you need.

If you’ve been officially denied, however, you should talk to a disability lawyer before filing an appeal. A lawyer can help you “stack the administrative record” with evidence so that, if you have to file a federal lawsuit, the court will be able to consider all of your evidence (a federal court can’t consider any evidence that wasn’t brought up in an appeal to the insurance company).

If you’re considering applying for SSDI, you may also find this Nolo article on getting disability benefits for back problems helpful.

Will moving back in with my wife cause her to lose SSI and Medicaid?

Question: I am on SSDI and my wife is on SSDI and a very small SSI check. We live apart but her health is getting worse and she really needs to live with me. I get $807 SSDI and have to pay my $29 for Medicare Part D out of that. She gets $703 SSDI after her Medicare D payment. I would actually be kind of a caregiver for her, as she falls down a lot from her strokes years ago. We are wondering if it would affect her income or Medicaid in any way. She has full Medicaid because of her small SSI check and I am on Medicaid crossover.

Answer: Your income would be counted toward your wife’s eligibility for SSI, and given your SSDI income, it’s not unlikely that she would lose her SSI and SSI-dependent Medicaid. But, if your state has opted into Medicaid expansion, your wife could continue to qualify for Medicaid under the Affordable Care Act (ACA). (Under the ACA, those with incomes up to 138% of the federal poverty level can qualify for Medicaid in expansion states.)

Additionally, it sounds like your wife has been receiving Medicare. If she loses Medicaid, she could probably qualify to receive free Medicare Part B through the Specified Low-Income Medicare Beneficiary (SLMB) and Qualifying Individual (QI) programs and to receive “Extra Help paying for Medicare Part D.

Also, you should consider that your increased income from moving in together could affect your dual eligibility status  for Medicare and Medicaid. You could probably also get help through the above programs, but you may not continue to qualify as a Qualified Medicare Beneficiary (QMB) for crossover purposes. This could mean you might be subject to more out-of-pocket costs. I would talk to Social Security about how the move would affect your wife’s SSI eligibility and to your state’s department of health care services about how the change would affect dual eligibility for you both.

If my injury didn’t happen at work, are any benefits available besides welfare or SSI?

Question: I hurt my back badly and I can’t do my job anymore. Unfortunately the injury was on the weekend and not at work, so I can’t get any compensation or time off work for it. I don’t know what I’m going to do. I’m afraid I won’t be able to feed my family. What happens if I can’t pay my mortgage? I don’t want to have go on welfare or food stamps or SSI; I want to provide for myself. And don’t I have to become destitute and lose my house before I go on SSI anyway?

Answer: I’m sorry to hear of your injury. Your anxiety is natural — most people’s initial reaction to a disabling injury is the fear that they’ll never be able to work again and won’t be able to provide for their family. Fortunately, the Social Security Administration provides insurance against this type of situation. Many people think Social Security just provides retirement benefits, but if you are injured and unable to work for the long-term, you can start getting your Social Security benefits early. You can actually collect the same amount as you would at full retirement age.

This part of Social Security is called Social Security Disability Insurance (SSDI), and everyone who has paid FICA taxes (or self-employment taxes) for a number of years has it. It’s amazing how many people pay for this insurance but don’t know about it; they mistakenly think their only option is SSI, which is only for those with very low income (though to answer your question, SSI recipients can keep their house and car and still receive benefits). You shouldn’t be uncomfortable applying for Social Security Disability; it’s an insurance program you pay for in case something like this happens.

The maximum SSDI benefit this year is $2,640 this year, which is not too shabby, but to earn this amount, you must have worked a number of years earning a fairly good salary. Most people receive much less from SSDI; the average is around $1,200 per month. However, your family may also be able to get benefits if you’re found disabled. If you have a minor child, he or she can receive 50% of your benefit amount, and if your spouse is caring for your child or is of retirement age, he or she can receive 50% of your benefit amount (but if more than one dependent receives benefits, there’s a family maximum benefit that will limit the amount of benefits your family can receive).

The downside is that, unless your injury is very severe and clear cut (easy to prove with objective medical tests), it can take a long time to get a decision from Social Security. While you wait for a decision, you may be able to get a loan modification or forbearance on your mortgage or get other forms of temporary assistance.  And if you eventually get approved, you’ll be paid back benefits to the date you became unable to work, which add up to a significant lump sum. But be forewarned, it’s not easy to qualify for SSDI; Social Security must find that there is no full-time job you can do (even a sit-down job), for at least a year. To find out if your injury may qualify, you may want to read Nolo’s article on getting disability for back problems.

What can I do if Social Security didn’t give me the correct disability start date?

Question: I applied for SSDI in January of 2014 and, although I have been disabled since a major surgery on 01/20/12, SSDI chose 01/20/13 as my effective disability start date. This decision means I cannot receive Medicare benefits until January 2015.This is not a correct decision by SSDI and I cannot find any info on how to appeal the decision. I am hoping you will be able to assist me.   

Answer: Unfortunately, I don’t think Social Security has made a mistake. You may well have met Social Security’s definition of disability in January 2012, but Social Security will pay retroactive benefits going back only so far. In turn, Social Security will assign a disability start date (called an established onset date) going back only so far.

The rule is that Social Security will pay retroactive benefits going back only 12 months before the date you apply. Since you applied in January 2014, you can only receive benefits dating back to January 2013 (your “entitlement date”).  You become eligible for Medicare 24 months after your entitlement date, which in your case means January 2015.

Just to clear up a little confusion, your disability onset date is not the same as the day you become entitled to disability payments. There is a five-month waiting period in between your disability onset date and when you are entitled to be paid benefits, meaning Social Security will set your disability onset date to be five months before your entitlement date. What this means is that your disability onset date can be no earlier than 17 months before the date you apply for Social Security benefits. In your case, your disability onset date should be in August 2012.

I’m sorry that wasn’t the answer you wanted to hear. You may be able to qualify for Medicaid until January 2015, if your medical expenses are very high and your income and assets aren’t.

Do I Have to Pay Taxes on My Lump-Sum Backpayment of Social Security Disability Benefits?

Question: I was finally approved for disability late last year and received a large lump sum payment from Social Security. But half of this money was for the tax year before last year. It makes it look like I had a high income last year. Am I going to have to give half my disability backpay away because of this? Can I amend the last year’s tax return and claim half the disability income on that return instead?

Answer: Disability backpay can bump up your taxable income in the year you receive the lump sum payment from Social Security, which could cause you to pay more in taxes than you should have to. Technically, part of the backpay should have been paid to you last year or even the year before, so Social Security does allow you to attribute part of the backpayment to prior years, if you know how to do it.

First, know that many people won’t owe taxes on their backpay at all because their income is so low. If you file your taxes individually and you received less than $25,000 in disability backpay and income during the year, you won’t owe any taxes on your Social Security disability income. Likewise, if you file your taxes jointly (with your spouse) and you received less than $32,000 in backpay and income during the year, you won’t owe any taxes on your disability income.

If your backpay and income are over these amounts, the IRS will allow you to allocate your past-due disability benefits to the year you should have received them, and you don’t have to “amend” your prior year tax returns to do it. Social Security should have sent you a form called SSA-1099. It will state in Box 3 how much of your disability backpay was owed to you for each of the previous years you accrued back pay.

You’ll still pay any taxes owed on these amounts with your current year’s tax return, but you’ll be able to figure out whether you owe taxes on each year’s disability backpayments using the amount of backpay attributable to the prior years and your other income in those years. In prior years where your income, including the backpay attributable to that year, was below $25,000 (or $32,000 if you’re married), you won’t owe any taxes on the disability backpay. IRS Publication 915: Social Security and Equivalent Railroad Retirement Benefits describes this method in full and provides worksheets, but it can still be difficult to figure out how to do it. You may want to talk to a tax professional or use tax preparation software to make the calculations for you.

Note also that if you hired a disability attorney to help you win your Social Security benefits, you can deduct the cost of the attorney’s fee so you don’t have to pay taxes on this amount. For more information on this, see our article on the taxation of disability backpay.